Using the law to turn down the Vulnerability Thermostat

Graeme Innes

I was a lucky teenager. My family didn’t ‘wrap me in cotton wool’ because of my disability, and I knew the career I wanted when I ‘grew up’. The law.

I had a solidly middle-class family, with strong Christian ethics and values. While recognising the strengths of Australian society, I was not content. I saw ‘vulnerability’ and ‘disadvantage’. I wasn’t sure what I could do, but I knew the law would help.

Forty odd years later, as I complete my term as Australia’s Disability Discrimination Commissioner, I can reflect on our society — how it has changed, and whether it has improved. Such reflection is appropriate in this edition of the AltLJ, dealing with vulnerability.

But how can that disadvantage or poverty be lessened, reducing vulnerability? There are three broad ways — a change in culture, a change in available resources (to quote Cyndi Lauper, ‘money changes everything’), or a change in law. The three are often intertwined.

A change in culture impacts on the way a group is viewed. This requires leadership, from inside and outside the group. The Rudd government apology to Aboriginal and Torres Strait Islander peoples, the ‘close the gap’ campaign, and the move towards constitutional recognition, are examples. Polling done by RECOGNISE —www.recognise.org.auconfirms this change of view.

In contrast, the way Australian politicians and people view asylum seekers has significantly, and negatively, changed since the positive leadership of Malcolm Fraser at the end of the Vietnam War.

The second means of change is through allocation of resources. Older Australians enjoy a better quality of life since the introduction of the Aged Pension in 1909. Our first Australians, too, have benefited from this, as the ‘close the gap’ figures show.

The change not yet seen is the more positive contribution which people with disabilities will make to Australian society as the National Disability Insurance Scheme rolls out. It replaces a system which is broken and broke, where funding and support are little more than a postcode lottery, and which gives us little choice or control. It is the one item which turns down the vulnerability thermostat (‘VT’) in a budget containing many which turn it up.

The third cause of change, which appealed to that teenager forty years ago, was change of law. So I joined many of you in a legal career focussed on using the law to redress the imbalance we saw in society.

I can’t hope here to touch on all of the law changes which have had this effect during that time. I was only involved in a few, and I was just one of many with that involvement. But let me list three.

First, although the VT has risen again in this area, the Bridging Visas scheme in 2011 was a positive. More asylum seekers were released from immigration detention into the community, reducing the cruel impact of limbo-like mandatory detention. Health outcomes — particularly mental health — improved, and opportunities for asylum seekers to contribute to the Australian community increased.

Secondly, the Australian Human Rights Commission Same Sex: Same Entitlements report, which led to the amendment of more than one hundred Commonwealth laws that discriminated against people on the basis of their sexual orientation. These laws gave such couples lower social security benefits, and fewer tax concessions, simply because of who they loved.

Finally, the broad positive impact of the Disability Discrimination Act since it came into effect in 1993. We now have more accessible buildings and transport, better access to education, and a continuing opportunity for people with disabilities to legally challenge the sea of discrimination in which we swim.

The complaints can be hard to lodge, the cases tough to run, but the outcomes benefit thousands of other Australians.

Scarlet Finney can enrol at the school in the bush, Seku Kaneh can have an equal chance to win, Bruce Maguire can share the Olympics with his kids, and Maurice Corcoran can get on the bus. Just Google Twenty Years: Twenty Stories to find out more.

Sadly, though, the budget bit here as well — scaling down the Disability Discrimination Commissioner to a part-time role, filled by someone not likely to have lived experience of disability.

So, as this issue demonstrates, the fight over that VT switch continues. More strength to our arms in turning it down.